Thomas v. Dillard Dept. Stores, Inc., 96-2966

• Decision Date: 14 July 1997
• Docket Number: No. 96-2966,96-2966
• Citation: 116 F.3d 1432
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 430, 71 Empl. Prac. Dec. P 44,891, 11 Fla. L. Weekly Fed. C 139 Sue E. THOMAS, Plaintiff-Appellant, v. DILLARD DEPARTMENT STORES, INC., a Delaware Corporation Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1432

116 F.3d 1432

74 Fair Empl.Prac.Cas. (BNA) 430,

71 Empl. Prac. Dec. P 44,891,

11 Fla. L. Weekly Fed. C 139

Sue E. THOMAS, Plaintiff-Appellant, v. DILLARD DEPARTMENT STORES, INC., a Delaware Corporation Defendant-Appellee.

No. 96-2966.

United States Court of Appeals Eleventh Circuit.

July 14, 1997.

Scott Thomas Fortune, Atlantic Beach, FL, for plaintiff-appellant.

Robert J. Gregory, Washington, DC, Amicus, for EEOC.

John P. McAdams, Lorien Smith Johnson, Carlton, Fields, Ward, Tampa, FL, for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and PROPST ^*, Senior District Judge.

BARKETT, Circuit Judge:

Sue E. Thomas appeals from the district court's order granting judgment as a matter of law to the defendant Dillard Department Stores, Inc. Thomas alleges that she was terminated from her position with Dillard because of her age in violation of the ADEA. Thomas argues that the district court erred in determining as a matter of law that she was not actually "terminated" from employment where her employer removed her from her present position and subsequently appeared to offer her an alternative position. Because we find that the question of whether Thomas was actually terminated should have been submitted to the jury, we vacate the district court's judgment.

I. BACKGROUND

On June 8, 1993, Thomas filed a charge of age discrimination with the Jacksonville Equal Opportunity Commission, alleging that she had been terminated from her position as an Area Sales Manager (ASM) with Dillard because of her age. Thereafter, on May 5, 1994, Thomas filed suit against Dillard alleging willful age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, as amended.

Shortly before trial, on April 11, 1996, the parties entered into a stipulation regarding the issues to be presented to the jury and the damages Thomas would recover if she received a favorable jury verdict. ¹ In particular, Thomas stipulated that she was not pursuing a constructive discharge theory. Rather, the threshold question for the jury was whether Thomas had in fact been fired or had merely resigned after being demoted. ² At the close of plaintiff's case in chief, defendant moved for judgment as a matter of law pursuant to Fed.R.Civ.P. 50. The district court granted defendant's motion on the basis that "[a]s a matter of law, where the employee is offered an alternative job in the organization, there is no express termination.... [T]here is no legally sufficient evidentiary basis for a reasonable jury to find that there was an express termination of the Plaintiff's employment."

Thereafter, Thomas timely filed a Rule 59(e) motion to alter or amend the court's judgment, which was denied. Thomas appeals the district court's order and judgment.

II. DISCUSSION

We review the district court's order granting judgment as a matter of law de novo, applying the same standard applied by the district court. Walls v. Button Gwinnett Bancorp, Inc., 1 F.3d 1198, 1200 (11th Cir.1993). Thus, we must view the evidence:

in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion[ ] is proper. On the other hand, if there is substantial evidence opposed to the motion[ ], that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied.

Walls, 1 F.3d at 1200 (reversing the district court's judgment as a matter of law for the defendant in an ADEA case).

Appellant contends that the district court erred in holding as a matter of law that there was no actual termination because she was subsequently offered an alternative job in the organization. Appellant, joined by the Equal Employment Opportunity Commission (EEOC) as amicus curiae, argues that under the facts of this case the issue of whether she received a bona-fide offer of alternative employment or was, in reality, fired, is a jury question. Appellant and the EEOC argue that the inquiry as to whether an employee was actually terminated under the ADEA is fact-sensitive, cannot be automatically foreclosed simply by an apparent offer of an alternative position, and involves analysis of the employer's intent and the specific circumstances in which the challenged job action was taken. Appellant contends that there is sufficient evidence in this case to permit reasonable minds to conclude that her employer intended to terminate her, and did so, and that the offer of an alternative position was simply a reluctant and insincere offer of re-employment. ³

Dillard contends that by considering appellant's approach we would overturn a longstanding body of jurisprudence relating to the theory of constructive discharge, which holds that an employee may be deemed to have been discharged where the terms or conditions of employment under which she is asked to work are so intolerable that a reasonable person in her position would have been compelled to resign. See, e.g., Morgan v. Ford, 6 F.3d 750, 755 (11th Cir.1993); Wilson v. S & L Acquisition Co., L.P., 940 F.2d 1429, 1436 (11th Cir.1991); Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980). Specifically, Dillard argues that appellant's approach would alter the burden of proof in constructive discharge cases because employees would no longer have to prove that their decision to leave their employers was reasonable in light of the conditions of employment. Thus, Dillard suggests that employees would simply be able to quit after demotions and then claim they were discharged regardless of the reasonableness of their resignations.

Dillard's argument is misplaced because the actual termination inquiry advocated by appellant is distinct from the traditional constructive discharge doctrine and contains its own burdens that plaintiffs must shoulder. Appellant's approach would require employees to show that their employers intended to and did terminate them in light of the specific circumstances of the challenged employment action. This inquiry, unlike constructive discharge, involves no analysis of whether the employment conditions were so intolerable as to compel a reasonable person to resign, but it does prevent employees from merely asserting that they were discharged where the evidence shows that they quit after a demotion.

The case law makes clear that the inquiry as to whether actual termination has occurred involves analysis of the employer's intent. See Payne v. Crane Co., 560 F.2d 198, 199 (5th Cir.1977) (finding that a termination occurs for purposes of the statute of limitations under the ADEA when an employer "by acts or words, shows a clear intention to dispense with the services of an employee") ⁴; see also Whatley v. Skaggs Cos., Inc., 707 F.2d 1129, 1133 n. 3, 1137-38 (10th Cir.1983) (relying on employer's own description of job action in finding that actual termination occurred). The decisional law also establishes that the issue of whether an actual termination has occurred is determined in light of the particular circumstances of the controverted job action. See, e.g., Schneider v. Jax Shack, Inc., 794 F.2d 383, 385 (8th Cir.1986) (explaining that in determining whether actual discharge has occurred, "the realities of the employee's situation, as well as the employer's label for its job action, should be taken into account"); see also Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 88 (2d Cir.1996) ("An actual discharge ... occurs when the employer uses language or engages in conduct that 'would logically lead a prudent person to believe his tenure has been terminated'."); EEOC v. Service News Co., 898 F.2d 958, 962 (4th Cir.1990) ("No specific words need be present to support a finding of actual discharge."). ⁵

Moreover, we note that several other courts have relied on analysis of the specific facts of each case in concluding that an actual termination occurred even where the employer made an offer of an alternative position. In Whatley v. Skaggs Cos., Inc., 707 F.2d at 1133 n. 3, 1137-38, a Title VII national origin discrimination case, the Tenth Circuit addressed the issue of whether an actual termination occurred where the plaintiff was told that "he was no longer a lobby manager," id. at 1133, and was transferred to a lower-ranking position after pleading with his superior, id. at 1133, 1138. For purposes of determining whether the back pay awarded by the trial court was appropriate, the court held that the plaintiff had actually been terminated rather than merely demoted. Id. at 1133 n. 3, 1137-38. The court emphasized that there was testimony by plaintiff's superiors revealing that they had intended to terminate him. Id.

In Schneider v. Jax Shack, Inc., 794 F.2d at 384-85, the Eighth Circuit considered whether there was an actual termination where the plaintiff, after informing her employer she was pregnant, was removed from her position as a bartender and was offered a part-time position as a cocktail waitress, which she declined. Id. at 384. The court held that the plaintiff had sufficiently demonstrated that there was an "actual discharge" for purposes of establishing a prima facie case of pregnancy discrimination under Title VII. Id. at 384-85. The court focused on the "realities" of the plaintiff's situation, noting that she had received only a "vague offer" of alternative employment and that "the Jax Shack was not committed to employing her." ⁶ Id.

In Miller v. Butcher Distributors, 89 F.3d 265, 267 (5th Cir.1996), an age discrimination case under the ADEA, the Fifth Circuit rejected the defendant employer's argument that no...